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Having Covid or HIV in Mexico can land you in jail for the crime of “danger of contagion”

In June, as Mexico City filled with rainbow flags to celebrate sexual diversity and inclusion, a man was imprisoned for “danger of contagion”, a crime adapted to the AIDS (HIV) pandemic and which regained strength with that of Covid-19. The image of Juan “N”, as identified by the prosecution, was released in photo and video. His crime: not having informed a former partner that he was a carrier of HIV. The criminal type is called “danger of contagion” and can carry up to five years in prison to whom, knowing that he has a venereal or serious disease, infects more people “through sexual intercourse” or “other means”.

«What the crime does is criminalize people living with any health condition, be it HIV or any other ”, says Geraldina González de la Vega, president of the Council to Prevent and Eliminate Discrimination (Copred) of the government of Mexico City.

The complaints, the only means to prosecute the crime, they have scaled in the middle of the covid-19 pandemic. In 2020, the capital’s prosecutor’s office opened 78 investigations for “danger of contagion” and they already add 52 this year, according to official data that do not specify what disease motivated the complaints. But compared to the nine reports in 2018 and the 12 in 2019, the impact of the coronavirus is evident.

Although there are no reports of new incarcerations, the head of the Copred considers it “stigmatizing” to investigate a Covid-19 patient. With 2.7 million confirmed cases and 239,079 deaths, Mexico is the fourth country hardest hit by the pandemic in absolute numbers.

The advance of HIV led to tougher crime

The “danger of contagion”, present for decades in the federal penal code, responds to old moralisms of Catholic roots such as punishing “licentious” behavior, according to academic studies. In the 1990s, the AIDS advance led to toughen the norm in the nascent penal code of the then Federal District.

«The crime of injuries can penalize a person who fraudulently goes and infects another. And if you intend to do it and you can’t do it, we have tentative injuries, “explains González de la Vega. The figure thus contradicts constitutional principles of human dignity and non-discrimination based on health conditions.

In the case of Juan «N», the prosecution irreversibly exposed it by spreading the accusation, his face and personal data. “It is illegal,” says Jaime Morales, director of sexual diversity for the capital government, who today works to train and sensitize the personnel who disclosed the information.

Juan’s confinement, which lasted a week, was for the complaint from your ex partner, whose attorneys allege she was misled and put at risk. The prosecution argues that he was arrested for failing to respond to subpoenas. The judge finally determined that he could continue the trial at liberty. The AFP contacted the implicated person and his defender, who abstained from testifying so as not to affect the process.

An anachronistic crime

The criminal type is also anachronistic from a medical perspective. For two decades, antiretrovirals they reduce HIV until it is undetectable and therefore non-communicable. There are also preventive methods that protect up to 99% from possible sexual infections. “A person who is totally in control (treatment) does not transmit the virus to their partners,” says Sergio Montalvo, a doctor at the Condesa public clinic, specializing in HIV-AIDS.

The treatment is also free in any public health service in Mexico. Montalvo emphasizes that HIV-positive people have the power to share their diagnosis or not. Although Juan’s case marks a painful milestone, it also opens the door for the repeal of the crime. Temístocles Villanueva, a deputy for the ruling Morena party in the capital’s Congress, will present an initiative in August. “Is a State intervention on people’s private lives, about their sexual relationships, ”stresses Villanueva, for whom criminalization does not reduce contagion.

«What it does cause is that people hide their health so as not to risk being accused, “he adds. During 2020, 342 new cases of HIV were diagnosed in Mexico City and 9,220 throughout the country, according to official figures.

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